posted at 12:01 pm on June 18, 2014 by Allahpundit

The quickest way to catch you up on the procedural history here is to have you read this post from January, when the USPTO denied a trademark to a company that wanted to call its snack food “Redskins Hog Rind.” The NFL’s ‘Skins have actually had their mark canceled on “disparagement” grounds once before, in 1999, but that decision ended up being overturned in federal court on a procedural technicality. A group of Native Americans decided to have a second go at a suit a few years ago, and now here we are.

They had to show not only that the team’s name is disparaging, but that it was disparaging at the time the trademark was granted. Held: Bye bye, “Redskins.”

The team’s intent in using the name doesn’t matter. It’s what a “substantial composite” of the group implicated by the mark perceives. Follow the last link and scroll down to page 81 for the dissent, which argues that the historical evidence is simply too equivocal to find that “Redskins” was disparaging when the mark was first granted. (Arguably true!) The ruling doesn’t mean the team can’t use the name, just that they can’t stop unlicensed manufacturers from using the name on their own merchandise. Soon you’ll be able to sell your very own ‘Skins gear if you like, and Dan Snyder will lose tens or even hundreds of millions of bucks in the process. But not just yet: An appeal will follow, as it did in 1999, which means the trademark will remain in effect for years to come while the litigation plays out. Assuming, of course, Snyder doesn’t drop “Redskins” first.

“Disparagement” is interesting grounds for canceling a mark. After all, in theory, the market should be able to handle the problem. If Snyder changed the team’s name to, say, the “Washington Blackskins,” the economic backlash would be sufficiently swift and stern that you wouldn’t need the USPTO to convince him to change his mind. Empowering the agency to cancel a mark is sort of the intellectual property equivalent of civil rights legislation: It lets the government step in and sanction a business on behalf of people who may not have enough political or economic clout to force the change otherwise. Is that true of Native Americans, though, given the number of Senate Democrats who are now invested in this issue? Is it also true that the term “Redskins” brings Native Americans “into contempt or disrepute”? The weird thing about “Redskins” is that it’s so closely associated with football and the team in the public’s mind, I think, that over time the sports meaning has completely overtaken the racially derogatory meaning. If someone walked up to you today and said “What do you think of the Redskins?”, you’d assume without a second thought that he was asking you about the NFC East, not casually slurring Native Americans. Hard to argue that the word’s “disparaging” in that context. On the other hand, if you let the mark stand for that reason, then theoretically “Washington Blackskins” would and should also stand as long as it’s been in use for a long enough time that the underlying racial meaning has basically melted away. The USPTO wouldn’t go for that, so “Redskins” has to fall. Not because it’s actually disparaging but for reasons of simple consistency.

Exit question: How about “Washington Parasites”? “Washington Cronies”? If we’re going to use disparaging names in connection with the D.C. area, let’s really do it, you know?

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Comments

Was it not just last week that a not so presidential looking Obama visited an Indian Reservation?

He has a phone… and they called back.

In general; a Narcissist backed into a corner with no way to save itself is extremely dangerous. When they feel threaten they punish without concern of consequences of their action. The greater the threat of failure, the greater the punishment they will enact.

Maybe someone said something that got him to agreeing with the need for a name change. Maybe the team somehow ticked him off. Maybe he sees some votes in it or praise for himself. For whatever reason Obama decided to make the Redskins change their name. He pushed for it, told them to do it, and the Washington Red Skins denied him, publicly, pointing out that he could not make him change their name.

does this mean we have to rename half the city/town names in Michigan… an Ohio.. and Wis.. and Minn.. and…name your state

the city of Pontiac is close to here…
named after Chief Pontiac and his tribe…
they have a Pontiac lake too.. and an island also..
the chief is buried on the island legend has it..
does GM even make Pontiacs anymore… //
how much renaming are we talking here..

See this type of logic needs to end. I think it’s ridiculous to get offended by a sports team name, especially like mentioned above, one that’s been in place so that no one actually thinks of actual Indians when they hear that name. But the trademark only exists because of the federal government. So trademarks are very much under their jurisdiction. This is just the new “Get the government out of my Medicare!” nonsense that makes it easier for people to mock conservatives. Complain about the liberal whining about a name, fine. Question how many people were actually offended other than that the usual being offended on someone else’s behalf, great. Suggest names to offend the people who brought this one, awesome. But please no more of this “Why is the federal patent office getting involved in federal trademark decisions!” silliness.

sandbun on June 18, 2014 at 2:59 PM

How long has this team had a trademark?
And now it’s an issue? After what, 75 years?
Give me a damn break. This is liberal pansy passive aggressive beta-male politics, pure and simple.

What does the federal government care what a football team is called? If it’s really so damned offensive, let the free market force them to change their name. Or please explain why it’s the government’s job to force the issue?

I think I would be sorely tempted, were I the owner, to announce that I had decided upon a name change; that while my team had for 4 score years proudly embraced the character of a brave and noble people, it turns out that the character of that people had morphed into whiny victimhood, with which I no longer chose to be associated.

I was born in upstate Illinois in 1954 to native born parents.
My tribal identity is Celtic and Germanic.
I am a native American.
I find it ‘disparaging’ and insulting that the term is not applied to my tribes.
I think I’ll sue to change the name to the Washington Micks or Krauts.
Then give us the casinos and reservation land.

First, this has been an issue for many years, it’s been over two decades in getting to this point. Just because it’s only popped up on your radar recently doesn’t make it just now an issue. In fact the same board made the same decision in ’99, although it was overturned not based on that they had ruled incorrectly but that the plaintiffs in that case didn’t have standing. The plaintiffs fixed that issue this time around by having it be younger people bringing the complaint. And again, the government isn’t forcing anyone to do anything. They’re just cancelling some legal protections based on the the fact that those protections are illegal according to the Lanham Act of ’46. You’re right that the federal government shouldn’t be concerned about a team name. But they should be concerned with following the law that says a disparaging name can’t be trademarked. And they didn’t force the issue, that was done by the plaintiffs. And they had a legal requirement to consider the plaintiffs case.

Again, I think this is all stupid and can’t imagine caring what a team is called. But getting basic facts wrong don’t help anyone.

Since polls are so popular these days, why don’t these people poll ALL American Indians to be sure where they stand on this issue? For all we know, these citizens may be offended by ‘rain dance’. (I’m part Cherokee and I find NO offense with this issue whatsoever.)

I must be missing something here. As it currently stands, the Redskins have both the legal right and the financial reason to protect infringement of their trademark. That is, no taking the identifiable Indian profile and putting, say, horns and a clown nose oh him. If this ruling stands, I would think that the opportunities to do something truly offensive with the Washington Redskins logo and name would be great (how many non-Redskins fans are there across the nation?) and the Redskins could do nothing to stop it. Am I missing something, or is the unintended consequences of a “feel good” solution about to come into play?

How does this impact the potato farmers in Idaho that grow red skin potatoes? What about the Chicago Blackhawks? Florida State Seminoles? Tennessee Volunteers? I mean, c’mon, that’s offensive to just about everybody who feels that the Southern states should not have seceded from the Union and caused the Civil War. Let’s look at the Ole Miss Rebels while we’re at it. Can the northern states demand reparations from the southern states for causing the Civil War?

The Defense would be laughed out of court. Same effect as if someone tells you to get a shotgun and shoot through the door. A trademark is property of the creator of the mark. It has been and always will be as it is part of Common Law. The Federal Government may decide not to register the mark, but that is akin to a President following or not following a law. What will happen is that the Redskins will go to court and force the Government to register the trademark just like in 2003. If somebody is dumb enough to take Harry Reid’s advice, they will be sued to oblivion and lose

I’m an eagles’ fan so I hate the redskins… But I support Snyder here.
My hope is that he changes the name to something with a double meaning which sticks it to the Left.
mankai on June 18, 2014 at 11:33 PM

First, this has been an issue for many years, it’s been over two decades in getting to this point. Just because it’s only popped up on your radar recently doesn’t make it just now an issue.

Listen, you condescending twerp, I’m aware a few Indians who oined the the left’s perpetual grievance industry have been griping about sports teams who make use of their heritage for decades.

I’m also aware a vast majority of the “offended” are not Native Americans at all – they’re left wing race baiters who seize on this as an issue to demonstrate value to their otherwise useless existence and passively aggressively go after football fans, the majority of whom are perceived as white males who like manly things – and who thus make the beta-males on the left look bad by comparison.

It’s only recently, with people like Obama and Reid in office that anyone took them seriously.

And again, the government isn’t forcing anyone to do anything. They’re just cancelling some legal protections based on the the fact that those protections are illegal according to the Lanham Act of ’46. You’re right that the federal government shouldn’t be concerned about a team name. But they should be concerned with following the law that says a disparaging name can’t be trademarked.

Disparaging according to a who? A vocal minority of the people supposedly being disparaged? A majority of big government nanny-staters and left-wing journalists?

And while it’s true that the government isn’t forcing Snyder to keep the name – but they are stripping him of his property rights and millions of dollars from merchandise sales if he doesn’t. But, yeah, you’re right…they aren’t FORCING him to do anything.

I doubt the government would like it if judges applied that same kind of logic to the RICO statutes.

Face it: removing this trademark is left-wing activism, not judicious use of the trademark power.

Again, I think this is all stupid and can’t imagine caring what a team is called. But getting basic facts wrong don’t help anyone.

sandbun on June 18, 2014 at 11:03 PM

I’m pretty sure I didn’t get basic facts wrong.
You can’t defend what the government did here as legitimate on one hand and claim it’s “stupid” and I have my basic facts wrong on the other. Basically, you’re defending what the government did here, but you’re too weak-kneed (being diplomatic here) to come right out and say you support it.

Yeah. If everyone on the right were like you when it comes to defending liberty, we wouldn’t need Democrats.

Right now there are some very well paid lawyers trolling the USPTO servers for every other potential trademark with a similar issue. My guess is they will not only find some, but they will either all need to be mass-revoked for the same reason or this ruling will fall as inconsistent.

There are a plethora of words which, using the 21st century politically correct definition will be deemed offensive.

By the way. Doesn’t this intrude on the First Amendment? That is, the government redefining words they once, admittedly, by approval of this trademark, deemed- non-offensive?

The determination of “disparaging” was supposed to be made BEFORE the mark was registered. They failed to unregister the mark in 1999 using the same arguments, now they are using voodoo science and probability to attempt to do the same thing again. Why? Because they want the outcome, not because that’s where the law requires them to go.

I juxtapose this with the IRS destroying hard drives to remove evidence, which if I recall correctly, is against the law since those are public records and are supposed to be kept on servers, not just hard drives. (It may also be spoliation of evidence depending on when it happened.)

Then I find myself asking, what ever happened with the rule of law. My only conclusion is that the anarchists have arrived and are in power. But if you’re not in their good favor they will attempt to de-legitimize you.

1. 30% – a minority – is enough justification for the government to strip a legally obtained patent from a civilian / civilian-owned company? “There is nothing in the Trademark act that prohibits the trademarking of ‘disparaging’ terms…” You may not like it, but there is no legal basis to strip the Redskins of there Trademark. Political Correctness is not justification for a government to negate a citizen’s legal rights.

2. There are many ‘Rights’ afforded to Americans – the Right NOT to be offended is NOT one of them.

There are many ‘Rights’ afforded to Americans – the Right NOT to be offended is NOT one of them.

easyt65 on June 19, 2014 at 8:21 AM

This in-your-face assault on property rights signals an ugly 2+ more years of Obama. As Rush said yesterday, this is not the end of the Obama presidency. More like the beginning, as he’s just getting warmed up.

The US Department of Agriculture released an immediate order to halt all trade and commerce of redskin potatoes. AG Spox also said other food items are being evaluated, such as yellow and brown mustard, black-eyed peas, and certain apple varieties.

So basically, the natives referred to themselves as ‘red men’ in their native languages, and it was translated into English as redskin. It all turns out that native ‘Mericans are self haters too, like the Jooos and conservative blacks./sarc (shouldn’t have to, but there are a lot of newbies with the latest rounds of open registration).

Another question I can’t get answered by some reliably (il)liberal acquaintances: Why would a team decide on a nickname that they intend to be a disparagement? That is a marketing ploy that only a Soetoro could come up with. It defies logic that you want to name a club after something that you find objectionable.